Following the proposal of the Minister of Justice, Andrea Orlando, the Council of Ministers has approved two legislative decrees for the implementation of the law of reform of the Criminal Code, the Code of Criminal Procedure and the Penitentiary Order (Law of 23 June 2017, No. 103).
Below are the main regulatory provisions introduced.
- Admissibility of private prosecution under criminal law
Provisions amending the rules governing the admissibility of certain crimes in implementation of Article 1, paragraphs 16, points a) and b), and 17 of the Law of 23 June 2017, no. 103 (according to its preliminary examination)
The decree broadens the institute of admission of private prosecution under criminal law, extending it to crimes against the person and against property that are mainly characterized by the private value of the offense or by its modest offensive value, with the aim of improving the efficiency of the penal system, favoring mechanisms of conciliation for minor offenses, also through the extinction of the offense by restorative actions, and regarding offenses that can be prosecuted following a complaint by the injured party but where the complaint can be withdrawn, and consequently a greater effectiveness when punishing the most serious crimes.
In particular, prosecution following a complaint is introduced for crimes against the person punishable with only a monetary penalty or with a prison sentence not exceeding four years, with the exception of the crime of private violence, as well as for crimes against property as provided by the Criminal Code. In any case, the prosecution ex officio applies if the injured party is incapable because of age or disability, or because there are special aggravating circumstances or aggravating circumstances as indicated in article 339 of the Criminal Code or, in the case of offenses against property, the damage caused to the injured person is of serious gravity. Moreover, in relation to crimes that already have as an underlying presumption the prosecution following a complaint, the number of aggravating circumstances that entail an ex officio procedure, is reduced. In this way, the new rules also bring out and valorize the private interest in the punishment of the guilty in an area that is characterized by damages to goods that are strictly private goods, by linking it to the need to shape the criminal prosecution of offenses with abstract damages, to the assessment in concreto of its severity on the part of the injured person. The text takes into account the opinions expressed by the competent parliamentary committees, with particular reference to the deletion of the provision relating to the prosecution of lawsuits for offenses regarding illegal arrest, undue limitation of personal freedom, arbitrary personal search and inspection and the preservation of prosecution ex officio in cases where special aggravating circumstances are present. A second examination by the competent parliamentary committees is now necessary before the final approval by the Council of Ministers.
- Legislative principle regarding the codification of new criminal offenses
Provisions implementing the principle that the legislator can only include new criminal offenses in the criminal legal code and not in other codes, pursuant to article 1, paragraph 85, point q), of the law of 23 June 2017, no. 103 (final examination)
The decree initiates the implementation of the principle that the legislator can only include new criminal offenses in the criminal legal code and not elsewhere, to ensure a better understanding of the rules and sanctions and therefore the effectiveness of the rehabilitative function of punishment, an indispensable prerequisite for the entire penitentiary system to be fully compliant with the constitutional principles, through the inclusion in the Criminal Code of all the criminal offenses in legal provisions that are in force and that have as their direct objective the protection of issues of constitutional significance, such as life and protection of the civil community.
The new provisions start a virtuous process that curbs the proliferation of criminal legislation, puts the criminal code at the center of the system and lays the foundation for a more reasonable relationship between the protection of the protected property and the corresponding criminal sanction. On a general level, it should be noted that the decree does not intervene, by transposing the special laws to the relevant criminal offenses in the Criminal Code, in cases where there is a strong interrelation between the individual criminal norms and the underlying discipline that already includes them, as example in the case of criminal provisions regarding road safety, even though they aim to protect life and personal safety.
source: Italian Government, Presidency of the Council of Ministers (www.governo.it)